Fouts sued over appointee’s ‘termination’
July 22, 2013
The man once appointed by Mayor Jim Fouts to lead Warren’s efficiency efforts said he was banished to a city garage after he turned audio recordings of the mayor’s violent, profanity-filled tirades over to police in April.
The now-former appointee, finally identified as James Hartley, filed a federal whistleblower lawsuit against Fouts July 19, suing the mayor both personally and in his official capacity, claiming his rights under the state and U.S. constitutions were violated.
Hartley served as Warren’s CityStat coordinator and administrative supervisor while handling some of the mayor’s political heavy lifting prior to April of this year. CityStat is a data-driven resource management tool designed to improve efficiency in various city departments. Hartley said he was the target of “constructive termination” by Fouts, alleging he was stripped of his duties at City Hall, kept from his office there and was instead instructed to work in the city’s Department of Public Works garage counting auto parts manually on scraps of paper as retaliation.
According to the lawsuit, Hartley said he attempted to “manage” Fouts out of respect for his status as an elected official, while he grew increasingly concerned about the tenacity of the mayor’s “furious vitriol” toward “perceived political opponents.”
The mayor’s comments prompted Hartley to record his conversations with Fouts and to eventually turn the recordings over to police.
Two recordings provided to police and leaked to the media in April revealed repeated expletives and violent statements made by Fouts, covering topics ranging from the mayor’s profile on Wikipedia to comments posted on the Warren Forum online message board and the fallout from a civil lawsuit filed by a former Warren assistant city attorney.
Most of the statements were directed at the former city lawyer and another former employee who Fouts said he’d beat with a baseball bat if he saw him on the street. The recorded audio also included a statement about getting a gun and blowing the employee’s head off.
On July 19, Hartley told the Warren Weekly that a string of violent events reported in the local and national media prompted him to report the mayor’s bombastic statements.
“It was a reminder to me how important it is to stand up,” Hartley said. “I think all of those things combined made it very clear to me that even though this was a very difficult decision for obvious reasons, that it was the right decision.”
Hartley said he eventually turned copies of the recordings over to the Michigan State Police. Macomb County Prosecuting Attorney Eric Smith chose not to authorize criminal charges in the case after State Police investigators concluded their probe in early May.
Fouts used the stage at the city’s observance of the National Day of Prayer May 2 to publicly apologize for using profane remarks, but the mayor made no mention of the violent statements and never named Hartley as the appointee who recorded them. He said he was “ashamed and embarrassed” by the remarks, but later said the leaked private phone conversations, recorded by the then-unnamed source, were “despicable” and a “breach of confidentiality,” and that they amounted to political “dirty tricks.”
In the lawsuit, Hartley said the fallout from his decision to go to the police with the recordings resulted in retaliation that led to his “constructive termination.”
He claimed Fouts “acted on that retaliatory sentiment right away” by revoking the key card access to his office April 25, and that Fouts “turned without a word and stormed away, slamming doors as he went” when he reported for work at City Hall the following Monday.
Hartley alleged he was then ordered to go to work at the DPW garage, where he “was instructed to climb a ladder and count car parts by hand, and make hash marks on a piece of paper for each part for the duration of his work day — a job already assigned to one existing full-time and one part-time temporary employee.”
He said he continued with the “punitive parts-counting assignment,” but that he later sent an email to the mayor addressing the “futility of his assigned task” and the existence of a full-time parts manager whose job it was to inventory city parts.
Hartley further alleged he received no response from the mayor after he sent the email about his work status and that he was kept from performing his actual job. He said he was officially disciplined for the first time in his career in June, when he was suspended for a day without pay after he “sent routine correspondence” to city staffers about ongoing projects he had worked on.
On June 17, Hartley submitted a letter to Fouts about the situation and the coming legal action.
“Apparently, you must believe that this waste of taxpayer money to keep me on the payroll insulates you from claims that you retaliated against me, while serving your purposes of removing me from a position of responsibility,” Hartley wrote in the letter, which he provided to the newspaper. “In fact, your actions are naked retaliation and amount to constructive termination.”
Attorney Sarah Prescott with the Law Offices of Deborah L. Gordon, representing Hartley in the case, said the mayor’s words and actions were “right up there with the absolute worst of the worst” as an example of retaliation against a protected whistleblower and in violation of Hartley’s rights to free speech and association.
“You don’t sit in this job very long before you see some pretty horrible things done and some pretty horrible things said and some shocking behavior,” Prescott said. “This is right up there at the top of the list.”
Prescott said Hartley was essentially fired when he was moved from his job at City Hall to a city garage.
“I’m sure they got a little bit of satisfaction in the thought of him showing up in the garage in his suit and tie and being completely out of place,” Prescott said. “In the law, when you do that to someone, when you remove their responsibility and remove their title, it may not technically be a pink slip you hand them, it’s the same thing as firing him from his job.”
The lawsuit seeks unspecified compensation and damages, along with interest and court costs. It also seeks relief from the court that could return Hartley to his $66,933-position with the city, if feasible.
Reached for comment July 22, Fouts said he had yet to be served with the lawsuit and that the city had not been served.
The mayor declined to comment on the specifics of the complaint, but said the lawsuit was another part of an “orchestrated effort” to attack him politically.
He did say that Hartley left his job with the city on his own and that he was not terminated.
“I am extremely disappointed that Mr. Hartley has given a copy of the lawsuit to everybody except myself and the city attorney’s office,” Fouts said. “That is fundamentally unfair. It’s a media-driven lawsuit. End of story.”
Warren City Attorney David Griem said early July 23 that the city had not been served with the lawsuit, either.
“We have not been served at this point in time, which is both bothering and bewildering,” Griem said. “It’s my understanding that Mr. Hartley has given interviews about the lawsuit as early as last week, Thursday, to various members of the media. I’ve never seen a situation before where a plaintiff is parading before the media before even serving the defendant.”
Griem, nominated by Fouts and confirmed by the Warren City Council last month to succeed City Attorney James Biernat, accused Hartley of trying to “manufacture a lawsuit” to attack Fouts politically and to “hit the lottery without buying a ticket.”
“What I’ve heard of those tapes, Hartley initiated the conversation, egged the mayor on and all the time, surreptitiously taping every single word,” Griem said. “I think the evidence will show that Mr. Hartley was not very good at his job and in fact was a disruptive and divisive influence at the city of Warren.”
The case has been assigned to U.S. District Court Judge Robert H. Cleland in Detroit.
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